DEPARTMENT OF JUSTICE OFFICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA SUPERIOR COURT DIVISION WASHINGTON, D.C. AND LOCAL 3620, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES
PANEL

In the Matter of

DEPARTMENT OF JUSTICE

OFFICE OF THE UNITED STATES ATTORNEY

FOR THE DISTRICT OF COLUMBIA

SUPERIOR COURT DIVISION

WASHINGTON, D.C.

AND

LOCAL 3620, AMERICAN FEDERATION
OF

STATE, COUNTY, AND MUNICIPAL

EMPLOYEES, AFL-CIO

Case No. 96 FSIP 42

DECISION AND ORDER

Local 3620,
American Federation of State, County, and Municipal Employees, AFL-CIO (Union),
filed a request for assistance with the Federal Service Impasses Panel (Panel)
pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of
1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from
the determination of the Department of Justice, Office of the U.S. Attorney for
the District of Columbia, Superior Court Division, Washington, D.C. (Employer)
not to establish an alternative work schedule (AWS)(1) as proposed by the Union in
the Papering Intake Section of the Grand Jury component.

Following an
investigation of the request for assistance, the Panel determined that the
impasse should be resolved on the basis of an informal conference with a Panel
representative. The parties were advised that if no settlement were reached, the
representative would report to the Panel on the status of the dispute, including
the parties’ final positions and the representative’s recommendation for
resolving the matter. After considering the report, the Panel would take final
action in accordance with§ 6131(c) of the Act and § 2472.12
of its regulations.

Pursuant to the Panel's
determination, the parties met with Panel Representative (Staff Attorney) Ellen
J. Kolansky on June 13, 1996. The parties did not resolve the dispute. On June
27, 1996, Mrs. Kolansky visited the office where the affected employees work to
observe workflow patterns. She has reported to the Panel and it has now
considered the entire record.

BACKGROUND

The Employer is responsible for prosecuting both
local and Federal criminal matters which arise in the District of Columbia. The
Union represents 160 nonprofessional bargaining-unit employees. Currently, there
are four criminal history analysts and four legal technicians in the Papering
Intake office; two additional legal technician positions have been vacant for
over a year.(2) The legal technicians mainly: (1) assist attorneys, family members,
and witnesses at a walk-up window; (2) collect, assemble, and type labels and
the charging document (called an information) for folders called
"jackets" which identify arrestees; (3) assist police officers with
citations issued when arrestees are released; and (4) assist U.S. attorneys in
court with handling the jackets. Criminal history analysts are 20-year veterans
of the police force who, among other things: (1) check whether arrestees may be
linked with other crimes, have violated parole, have prior convictions, and are
wanted in other jurisdictions; (2) track the use of firearms; and (3) locate
missing vehicles and other stolen property (some of these tasks are performed in
other offices). The office is open 6 days a week; employees sign up for overtime
on a voluntary basis to cover the 6th day, a Saturday. From Monday through
Friday, the legal technicians work set schedules; their starting times are
staggered so that they begin at 7:30, 8, 8:30, or 10:30 a.m., respectively, and
finish 8½ hours later. Criminal history analysts work set schedules of 7 a.m.
to 3:30 p.m. daily. The parties are covered by a collective bargaining agreement
(CBA) which expired on July 7, 1996.

In the summer of 1995, the parties reached agreement
on a 1-year AWS pilot program. That program is to conclude on September 1, 1996,
but employees are to remain on AWS if the evaluation of the program extends
beyond that date. As relevant to the instant dispute, on September 1, 1995, in
accordance with Section C.2.(b) of the pilot agreement, the Employer notified
the Union of its determination to exclude employees in the Papering Intake
office from participation in the AWS pilot.(3) Although the parties engaged in
negotiations over the Employer’s determination, they were unsuccessful in
resolving the matter.

ISSUE AT IMPASSE

The dispute essentially concerns whether two of the
four legal technicians in the Papering Intake office should be permitted to
participate in the 5-4/9 AWS pilot. The issue before the Panel, therefore, is
the following:

Whether the agency head’s findings on which
the Employer has based its determination not to establish the Union's
proposed AWS pilot in the Papering Intake office is supported by evidence
that the schedule is likely to cause an adverse agency impact as defined
under the Act.(4)

POSITIONS OF THE PARTIES

1. The Employer’s
Position

Essentially, the Panel should find that the evidence
on which the Employer bases its determination not to implement the 5-4/9 AWS
establishes that the schedule is likely to cause an adverse agency impact as
defined under the Act. By letter dated March 20, 1996, U.S. Attorney Eric H.
Holder, Jr., stated that the schedule would cause "an adverse impact, i.e.,
a diminished level of services and a reduction in productivity."(5) To meet
Superior Court requirements, each day this office must complete jackets for all
adult arrestees who arrive at the court’s cellblock by 3 p.m. When police
conduct a "sweep" or protesters hold a demonstration, the number of
defendants held in the "lock up" can increase substantially;
typically, on any given day, the caseload may be as low as 60 or as high as 180.
Legal technicians’ current staggered schedules are ideally suited to handling
the unpredictable, pressured workload which peaks twice each day at 8 to 11:30
a.m. and 1:30 p.m. Under the proposed schedule, however, the office would be
shorthanded every Friday when one legal technician would take an AWS off-day;
the office already is understaffed because the two vacant legal technician
positions cannot be filled due to the hiring freeze. Other offices, also
affected by the hiring freeze, cannot loan employees to provide coverage when
employees are away, nor is it efficient for criminal history analysts to abandon
their critical research tasks to act as substitutes. Furthermore, the kind of
work available does not justify keeping all four legal technicians on the job
after 4:30 p.m., one result of the proposed schedule. Although the Union
suggests that such time could be spent restocking forms in the interview rooms
and assisting U.S. attorneys in court during prolonged sessions, the former is
not a critical task and the latter assignment already is covered by the employee
who begins work at 10:30 a.m. With respect to the employee who was commended for
singlehandedly preparing jackets for 197 arrestees in 1 day, this was an
exceptional circumstance. Requiring legal technicians to repeat such heroic
efforts on a daily basis could lead to errors which, in turn, might result in
the cases being dismissed.

2. The Union’s
Position

Basically, the Employer has not established that a
5-4/9 AWS in the Papering Intake office would have an adverse agency impact.
Although the workload is unpredictable, previously, when employees have been
away on leave, substitutes from another office and criminal history analysts
have assisted at the walk-up window and in preparing jackets. On Fridays, the
three legal technicians would be sufficient to handle the workload: one legal
technician could be assigned to the court, leaving two to take care of the
walk-up window and jacket preparation tasks. In this regard, the letter of
commendation to 1 employee who singlehandedly dealt with 197 cases shows that
even 1 employee can cope with a heavy caseload. In addition, Fridays are lighter
days. Finally, contrary to the Employer’s view that there is inadequate work
during the last hour of a 9-hour day, employees could copy and restock forms for
the interview rooms, and assist in the courtroom.

CONCLUSIONS

Under § 6131(c)(2) of the Act, the Panel is
required to take final action in favor of the head of the agency's or, in this
instance, her delegatee's determination not to establish an AWS if the finding
on which it is based is supported by evidence that the schedule is likely to
cause an "adverse agency impact."

Having considered the record before us, we find that
the Employer has met its statutory burden. In this regard, we are persuaded that
the unique functions performed on a mandatory basis and daily pressures dealt
with by the Papering Intake office, when coupled with the office’s being
short-staffed, establish that the proposed 5-4/9 schedule is likely to diminish
service to the public and reduce productivity. In particular, the division of
labor within the office, which includes the main task of preparing jackets that
serve to identify arrestees, along with serving at the walk-up window and
assisting in the courtroom, must be met, as regularly as possible, with the full
complement of legal technicians. Heavy workloads are as likely to arise on
Fridays as other days, since the workload is directly related to the number of
arrests made on a given day. Of special concern is the possibility that errors
could occur when fewer legal technicians are present to process such large
caseloads; the resulting errors could cause criminal cases to be dismissed for
technical reasons. Regarding the exchange of current midday hours on Fridays for
16 added late afternoon hours on 8 workdays, this part of the proposed
scheduling pattern is clearly at odds with the greater importance of handling
the regularly occurring, midday workload spikes. On the other hand, if, in the
future, the two vacant positions are filled, a proposal for such a schedule
might be revisited. In light of existing conditions, however, we shall order the
Union to withdraw its proposed 5-4/9 AWS.

ORDER

Pursuant to the authority vested in it by the
Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C.
§ 6131(c), the Federal Service Impasses Panel, under § 2472.12(a)of its regulations, hereby orders the Union to
withdraw its proposal.

By direction of the Panel.

Linda A. Lafferty

Executive Director

August 5, 1996

Washington, D.C.

1.Under a 5-4/9 AWS, during the 2-week pay period, employees work eight 9-hour days, one 8-hour day, and take 1 off-day.

2.The Employer states that a hiring freeze, which continues, has prevented it from filling the vacant positions during this period.

Within 2 weeks of the beginning of the pilot program, which will commence on the effective date of this Addendum, Division Chiefs, based only on the factors set out in subsection A.6., above, will designate the Divisions or the organizational components in the respective Divisions, if any, which will not participate in 5-4/9 work schedules. If the Union disagrees with a decision by the Employer under this paragraph, it may refer the dispute to the Federal Service Impasses Panel under Title 5, United States Code, Section 6131.

(2) a diminished level of the services furnished to the public by the agency; or

(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).

The burden of demonstrating that implementation of a proposed AWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens).

5.Under section 8 of the agency’s Administrative Procedures Handbook, U.S. attorneys are delegated the authority to establish and approve AWS.